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Please note that this post was written by Angela Bosworth

It’s here!  The much anticipated EEOC guidance on the use of criminal records in employment was issued today, setting off a flurry of interpretations, complete with webinar invitations and blog posts. Not to be outdone, here’s our take on the matter.

By way of introduction, the road to new guidance was paved …

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The EEOC has been busy crafting new guidance that will affect the way you use criminal history in employment. Today the EEOC is expected to vote to approve the new Enforcement Guidance on the use of criminal records in employment, which will go into effect immediately. Changes are coming your way.

Join EmployeeScreenIQ’s Angela Bosworth, JD and Nick Fishman for this special call-in event to review the changes to the guidance and understand what it means for you and your organization.

Register today for this briefing
EEOC on the use of criminal background checks in employment.

Date: Friday April 27th
Time: 2:00 PM – 3:00 PM EST
Register here: https://www1.gotomeeting.com/register/885608496

Topics covered include:
• Comparison of the new guidance to the prior guidance
• Bright line tests and limitations on number of years reviewed
• State law issues and mandatory criminal checks
• Open and pending cases
• Rehabilitation and recidivism
• Relevancy of information, job relatedness and best practices

Download the Whitepaper now!

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It’s official–The Equal Employment Opportunity Commission (EEOC)  will meet on April 25, 2012, http://www.eeoc.gov/eeoc/meetings/next.cfm and is expected to vote and approve new enforcement guidance on the use of criminal background checks in employment.  Credit check guidance, which was initially on the table, has been scrapped—presumably because the proponents could not get the votes needed to ensure passage.  As the Wall St. Journal pointed out, the Commission is rushing to push the vote next week, before the imminent departure of Democratic Commissioner Stuart J. Ishimaru on April 29. Once he leaves, Democrats will lose their majority on the panel, and until he is replaced, future votes are likely to result in a 2-2 gridlock.

We expect the EEOC’s new guidance will substantially modify the existing guidance that has been around since 1987. New guidance will supersede the old guidance, and will take effect immediately upon passage. We anticipate it will contain additional factors for employers to consider when using criminal records, such as the age of the offender at the time of the crime, rehabilitation, timing of the inquiry into criminal history, relevancy of information, and best practices in handling open cases and arrests.  The guidance is intended to assist both employers and those charged with enforcement at the EEOC. But we are concerned that the passage of new guidance without input from employers or the public with muddy the waters and have a net effect of complicating the hiring process. Which is the last thing we need right now, when employers are finally starting to rebound and hiring is finally on the upswing.

Shameless plug for webinar?  Join us for webinar on the 26th, and a special conference call the 27th.

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And the gloves have officially come off.  If the Equal Employment Opportunity Commission (EEOC) thought that they would quietly provide new guidance (i.e. de facto legislation) to employers on criminal background checks and credit reports, the Wall Street Journal just sent the first shot across the bow.

As we have previously mentioned in some recent blogs, the EEOC is scrambling to get this guidance out by the end of the month.  Why the rush?  Check out WSJ’s editorial below.  I imagine that this is just the beginning of the criticism that will come should the EEOC make wholesale changes to the current rules without seeking public comment and by passing these rules without a vote by our elected officials.

The Hiring Police

The Obama Administration’s favorite antidiscrimination tool is “disparate impact,” which relies on statistics to allege racial prejudice, regardless of intent. The Justice Department is using it to lean on banks to lend to more minorities, and now we hear the Equal Employment Opportunity Commission wants to use it to wield more power over business hiring.

Several sources tell us the Commission is working on policy guidance that would significantly limit companies’ use of credit and criminal histories in hiring under Title VII of the 1964 Civil Rights Act. A Commission spokeswoman declined to comment by email, “citing Agency practice barring public discussion of any policy that may or may not be in development.”

No wonder. We’re told that some members of the Commission want to declare that the use of credit checks and criminal histories may have a disparate impact on African Americans and Hispanics. Nothing like the prospect of being branded a racist to force companies to change their hiring practices to suit government’s bidding. Cue the trial bar.

The irony here is thick, given that credit checks were once viewed as a way to undermine the good ol’ boy network and base hiring decisions on facts, not race. Once upon a time, too, there was a distinction between discrimination based on race, which is rightly outlawed, and discrimination based on individual ability and responsibility, which is crucial to making good personnel decisions for colleagues and customers.

A company might use a credit check if a prospective employee would have a job that handles customer monies, for instance. A child-care center might want to know if an applicant has a criminal record. Both help companies make prudent hiring decisions.

The Commission would be overstepping its legal bounds if it proceeds. Under Title VII, the Commission has the ability to “issue, amend or rescind suitable procedural regulations,” not make substantive new rules. Congress expressly permitted the use of credit and criminal histories in hiring decisions under the 1970 Fair Credit Reporting Act and subsequent amendments.

The Commission has held public hearings on the general topic of background checks that include credit and criminal histories, but it hasn’t made its prospective guidance available for public comment or sought a review from the White House office that examines new regulations. The U.S. Chamber of Commerce earlier this month wrote to Cass Sunstein, chief of the White House Office of Information and Regulatory Affairs, asking for such a review. Good idea.

The Commission’s heightened interest in wielding disparate impact over business hiring may have something to do with the pending departure of Democratic Commissioner Stuart J. Ishimaru. Once he leaves, Democrats will lose their majority on the panel, and the chance of issuing this kind of guidance will diminish considerably.

The only certainty is that such a decision would further complicate business hiring at a time when America’s millions of jobless need more potential employers. The harder government makes it to hire or fire someone, the fewer people will be hired.

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The U.S. Chamber of Commerce has asked the Office of Management and Budget (OMB) to instruct the Equal Employment Opportunity Commission (EEOC) to allow for public comment prior to releasing new guidelines on the the use of employment criminal background checks and credit reports.

As we’ve previously written, the EEOC believes that these background checks have a disparate impact on minorities and are bent on creating rules that will limit the ability of employers to access and use such information.  Ordinarily, agencies allow for public comments so that they can take into account all sides of the equation.  In this case, has refused such requests on numerous occasions.

It appears that they are hiding under the veil that they are considering “guidelines” not “laws”, even though they know very well that their guidance will serve as a de facto law.  In my opinion, they are bypassing public comment because they know that the public response will not be favorable not only from the business community, but also from consumer, volunteer and other charitable organizations.

Chamber Urges OMB to Require EEOC To Open Process on Background Checks

The U.S. Chamber of Commerce is urging the Obama administration to compel the Equal Employment Opportunity Commission to allow public input as the agency ponders issuing new enforcement guidance regarding employers’ use of criminal background and credit checks.

In an April 2 letter to Office of Management and Budget official Cass Sunstein, the chamber said EEOC’s potential guidances on both topics warrant OMB’s review for procedural and substantive reasons.

“By all accounts the EEOC is now preparing to approve these significant guidance documents without making them available for public comments and without seeking review by [OMB],” the chamber told Sunstein, head of OMB’s Office of Information and Regulatory Affairs.

The chamber said that although EEOC has held public meetings “on the very broad topics” of employers’ use of background checks and individual commissioners have met with agency stakeholders to hear their concerns, EEOC “has not shared its draft guidance for the opportunity to provide comment.”

“[A]t this stage, members of the public can only guess as to the direction that the guidance will take,” the chamber said. “This is contrary to the strong public policy favoring pre-adoption notice and comment on guidance documents.”

The chamber urged OMB to ensure that EEOC does not finalize guidance until it has been properly reviewed by OMB and made available for public notice and comment.

More

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I hope you aren’t tired of reading about class action lawsuits brought by the EEOC. The Commission is linking discrimination to background checks –specifically credit history and criminal records. So I’m not so surprised to see that the agency has more of the same planned for the next few years.  When the Commission announced their strategic plan for fiscal years 2012-2016 a couple of weeks ago, at least one message was clear–there is no intention to slow down the EEO express being driven by Chair Jacqueline A. Berrien.

While strategic plans from federal agencies can be painful to read, there are a couple of noteworthy points here. The plan was light on specifics, but the EEOC announced “the Plan serves as a framework for the Commission in achieving its mission by focusing on three strategic objectives: strategic law enforcement, education and outreach, and efficiently serving the public.” The main focus is on the first objective—enforcement.  “In keeping with the agency’s statutory mandate, the majority of the EEOC’s financial and human resources will be devoted to Strategic Objective I.”

Let me break it down. Translation= more litigation. That makes sense, considering the “No more Mr. Nice Guy” trend that we have been watching for past year. Targets have been large companies like Pepsi, Kaplan Higher Education and Panda Express.  The Commission will continue to focus on systematic discrimination—patterns, practices, policies, and class cases where the alleged discrimination has a bigger impact. Large employers take note.

One more interesting point:  the plan was approved 4-1, which means at least one commissioner wasn’t buying what the Commission was selling. On a Commission of five individuals with a shared goal of ending employment discrimination and promote equal opportunity, it’s pretty interesting that they did not have a unanimous vote.

Constance Barker, the sole Commissioner who voted against the plan, said that she hoped that the Commission would stop “evaluating professional lawyers on the basis of the number of lawsuits that they file.” Wow. She voted against the plan, saying that the EEOC is losing focus of its “core mission,” which is to “prevent discrimination from ever occurring,” not to stop nor to provide remedies once discrimination has occurred. “So to the extent that this plan does not provide that as its first and foremost strategic priority, the plan simply and profoundly misses the mark.”  Watch all of the action here.

Consider this–maybe it’s time to slow down the excessive litigation and zealous pursuit of multimillion dollar settlements that are not solving the problem, and quit just playing lip service to prevention. Agree or disagree–it’s nice to finally hear a different point of view being intelligently articulated. Thank you, Commissioner Barker.

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It was just announced that Pepsi Beverages will pay $3.13 million to settle a lawsuit with the Equal Employment Opportunity Commission (EEOC) over alleged discriminatory background screening practices.

The case centered around Pepsi’s policy to not hire applicants on a permanent basis whose background checks revealed an arrest that did not lead to conviction for positions at their factory.  In particular, the EEOC said that 300 black applicants were denied permanent employment due to arrests that did not lead to convictions.  The policy was deemed discriminatory because there was “reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964.”

Personally, I wish this case didn’t solely focus on minorities.  After all, I have to believe that white applicants were treated the same way.  It’s like saying that the policy would have been fine had they not attempted to hire minorities.

Using arrest records that didn’t lead to convictions is a tough policy to enforce, especially when it is a blanket policy, but it is permissible (please consult with your legal counsel for more on this).  This case underscores the need for employers to take a close look at their background screening standards and to align non-hireable convictions (or arrests) with the responsibility of the job itself.

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Sorry, I’m a little slow on posting this, but the EEOC recently wrote an opinion letter that suggests that requiring a high school diploma as a condition of employment may be discriminatory.

Now as many of you know, I would usually take this opportunity to excoriate the EEOC.  However, I’m turning over a new leaf this year and refuse to be drawn into negativity (anyone want to place a wager on how long this will last for?).

ERE’s John Zappe wrote a great post on this topic.  See excerpt below.

An “informal discussion letter” just posted to the EEOC’s website says that under certain circumstances, requiring a diploma may run afoul of the Americans with Disabilities Act. If the requirement screens out persons unable to earn a diploma because of a bonafide disability, the employer has to justify the requirement as job-related and consistent with business necessity.

Doing that for some jobs isn’t going to be easy. Employers almost as a matter of routine include at least a high school degree requirement in every job posting, including for janitors and cleaners. The U.S. Labor Department, however, says, “Most building cleaning workers, except supervisors, do not need any formal education and mainly learn their skills on the job or in informal training sessions sponsored by their employers.”

Informal discussion letters aren’t policy. That’s up to the Commission members. However, employment lawyers see the letter as signaling the possibility that the EEOC may be looking to step up its enforcement of other provisions.

Says Proskauer Rose attorney Nigel F. Telman, “I could see them potentially … saying at some point” that a high school diploma requirement “may have a disparate impact on a particular class of people.”

For instance, 87.1 percent of the U.S. population older than 24 has a high school degree. However, only 62.9 percent of Hispanics do. So requiring a degree does have a disparate impact nationally. That alone isn’t illegal. But it does mean you’ll have to justify the requirement as both job related and consistent with business necessity.

If it’s the ADA that’s involved, you’d also have to also establish that with or without an accommodation the disabled person is unable to do the job.

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Discriminatory?  Really?

Doesn’t everyone in this country has access to public education?  What they chose to do with that access is up to them. I agree that every job should have requirements that correspond to the position, but discriminatory?  What on earth is the EEOC thinking?  Why not just make it illegal to actually have a degree?  I’m sure our kids would love that. I guess they aren’t happy until their relentless policies force everyone into court (or out of business).

So much for turning a new leaf.  I couldn’t hold back:)

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Labor and employment attorney, Jon Hyman of the Ohio Employer’s Law Blog fame posted an story about a recent opinion letter issued to the Peace Corp. on how to properly perform background checks on their volunteers.  The advice they provided is truly insightful as to what they might have in mind following their July hearings. Check out Jon’s post below. I have highlighted items to take note of.

The Peace Corps asked the EEOC for an opinion on the legality of its use of conviction and arrest records to screen potential volunteers. In response, the EEOC published an informal opinion letter, which offers guidance for employers who are considering using conviction or arrest [records] as part of their screening processes.

Conviction Records

  • According to the EEOC, conviction records have the potential to have a disparate impact on African Americans and Hispanics. Therefore, employers should only use them when “job related and consistent with business necessity.”
  • To ensure that applicants’ criminal history information is used in a way that is consistent with Title VII, the EEOC recommends that employers limit criminal history inquiries to convictions that are related to the specific positions in question, and that have taken place in the past seven years.

Arrest Records

  • Arrest records are different than conviction records because of their inherent unreliability. For example, they are not persuasive evidence that the person engaged in the alleged conduct, and may also be poorly reported or updated.
  • If employers decided that arrest records serve a useful purpose in screening applicants, their use should be limited to offenses related to the specific position.
  • To account for the potential unreliability of arrest records, employers should also provide applicants a reasonable opportunity to dispute their validity.

So, there are two things in here that provide some insight as to where they are going on this.

  • Employers should only use information from the past 7 years.  This jibes with California laws, but most other places throughout the country do not place time restrictions on convictions that can be considered.
  • Employers should give applicants the opportunity to dispute the information on arrest records.  Now, like you, my first thoughts were that they have that right as part of the Adverse Action process.  However, based on some remarks that I’ve heard from those in attendance at last week’s NAPBS conference, this is something they would want before the adverse action process begins.  So, they want a “pre-pre-adverse action” process?

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Jon Hyman of Ohio Employer’s Law Blog fame just posted about yet another embarrassing episode for the EEOC.  This time they were ordered to pay Cintas Corporation nearly $3 million dollars for overzealous legal tactics.  This on the heels of the PeopleMark ruling earlier this year which resulted in a $750,000 judgment against the agency.  Jon also recently wrote about another ruling that went against the EEOC in the Kaplan Higher Education case which deals with the use of an employer’s use credit reports as part of the background screening process.  And at the same time they are unfairly saddling these corporations with unfounded lawsuits, they are wasting time and tax payer money which affects us all.  See Jon’s complete post below.

A Michigan federal judge has slammed the EEOC for its “reckless sue first, ask questions later strategy.” After 11 years of litigation, the court awarded the EEOC’s target, Cintas Corporation, $2,638,443.93 in attorneys’ fees, costs, and expenses from the agency.

The court justified its astronomical award based on the EEOC’s failure to investigate before filing suit, and dilatory tactics before and after filing suit:

  • The EEOC did not investigate the specific allegations of any of the thirteen allegedly aggrieved persons until after the Serrano plaintiffs filed their initial complaint, and after it filed its own complaint years later.
  • The EEOC did not engage in any conciliation measures as required by § 706 prior to filing suit on behalf of the named Plaintiffs.
  • The EEOC did not identify any of the thirteen allegedly aggrieved persons as members of the “class” until after the EEOC filed its initial complaint.
  • The EEOC failed to make an individualized reasonable cause determination as to the specific allegations of any of the thirteen named plaintiffs in this action….

During the course of its involvement in this case, the EEOC filed, and lost, over a dozen motions. Furthermore, Cintas was forced to file a number of motions because of the EEOC’s failure to properly respond to Cintas’ discovery requests. Cintas succeeded on all of these motions, and the EEOC’s conduct served only to prolong this decade-long litigation…. In his March 2, 2010 Order Granting Motion to Compel, Magistrate Judge Scheer stated, “There appears to be no purpose for [the EEOC’s] position [to withhold the questionnaires] other than to increase the difficulty and expense of the defense of this action by Cintas.”

Employers, if you’ve ever been sued by the EEOC, you know it is never fun to be in its crosshairs. Unlike you, the agency does not pay lawyers to litigate for it, and has seemingly unlimited resources to make your lives a living hell. Take heart, though, that there are judges who will hold the EEOC’s feet to the litigation fire. As this case illustrates, it is possible to beat the EEOC at its own game. But, it’s going to take perseverance.

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